South Korea have also begun to regulate trading cartels that negatively impact their
domestic markets and foreign trade (Tamura et al. 2005; Kang & Han 2002). In addition,
many countries have export control laws to regulate who may receive goods originating
in, or transferred through, their territories, and for what purposes (Cupitt et al. 2003;
Meessen 1992).
Interestingly, many of the states now using extraterritorial regulation in order to
ensure the integrity of domestic rules and policy preferences have been sharp critics of
U.S. extraterritoriality in the past.
Furthermore, many of the regulatory issue areas in
which other states have become active, especially antitrust, are those in which the United
States has been most active. This could be explained by a new strategy to defend against
U.S. extraterritoriality. More likely, however, the same functional imperatives tied to
globalization that have prompted U.S. regulators, with the support of U.S. courts, to
increasingly ignore territorial boundaries when applying regulatory rules are at work
more broadly in the international system.
The ‘basic rights’ argument also has resonance beyond the United States. For
example, numerous states have enacted domestic legislation criminalizing travel abroad
for the purpose of engaging in sexual acts with minors (‘sex tourism’).
Significantly,
international sex tourism does not diminish the ability of regulators from prohibiting
similar types of sexual trafficking of minors inside their borders. Nevertheless, this is an
example of a behavior that has come to be viewed as incompatible with the ideal of
citizenship (or residency) in these countries, even when engaged in extraterritorially. The
‘basic rights’ logic can also be observed in recent actions by courts in Spain claiming
jurisdiction over General Pinochet for egregious human rights violations during his rule
in Chile, and in Belgium asserting universal jurisdiction over certain protagonists in the
Rwandan genocide (Kirgis 1998; Keller 2001).
These observations together suggest a need for considerably more comparative
work that explores how the extraterritorial aspects of regulation are managed within, and
across, other countries and legal traditions. They also point to a need to expand and test
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Extraterritorial regulation by U.S. courts has prompted foreign states, including many of the U.S.’s
closest security and trading partners, to issue protests and sanctions, to take steps to preempt U.S. court
decisions through parallel court proceedings, and to pass national legislation specifically to block domestic
compliance with the extraterritorial decisions of U.S. courts (Zimmerman 1992:174).
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Few if any regulated activities inherently require the use of civil versus criminal penalties, or even the
exclusive use of either. Instead, the selection of particular penalties to regulate particular legal violations is
a choice made by governments about enforcement strategies.
29
Convention